DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order

Construction, Forestry, Mining and Energy Union
v
Carter Holt Harvey Wood Products Australia Pty Ltd
(B2017/183)

COMMISSIONER RYAN

MELBOURNE, 8 MARCH 2017

Proposed protected action ballot of employees of Carter Holt Harvey Wood Products Australia Pty Ltd.

[1] This is an application by the Construction, Forestry, Mining and Energy Union (the Applicant) made under s.437 of the Fair Work Act 2009 (the Act) for a protected action ballot order in relation to certain employees of Carter Holt Harvey Wood Products Australia Pty Ltd (the Respondent).

[2] On 3 March 2017 my associate was advised that the Respondent did not object to the application.

[3] In the circumstances, I have decided to determine the matters on the papers without holding a hearing.

[4] On the basis of the material before me, including the statutory declaration of Mr A Vendramini of the Applicant setting out the steps taken by it in bargaining with the Respondent and that it has been, and is, genuinely trying to reach agreement with the Respondent, I am satisfied that there is a notification time in relation to the proposed agreement and that the requirements in s.443(1) of the Act have been met.

[5] An order has been separately issued in PR590706.

COMMISSIONER

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CaseChat Overview and Summary

The matter before the court involved the Construction, Forestry, Mining and Energy Union and Carter Holt Harvey Wood Products Australia Pty Ltd. The dispute centred around the proposed industrial action ballot of employees. The case was heard in the Fair Work Commission of Australia. The union sought to conduct a protected action ballot to allow its members to vote on potential industrial action. The company opposed the ballot, arguing it was not a genuine step in negotiations and would cause significant economic harm.

The legal issues before the court were whether the proposed ballot constituted a genuine step in good faith negotiations and whether the economic harm caused by the ballot outweighed the union's right to conduct such a vote. The court needed to balance the union's right to organise and take industrial action against the potential harm to the company and the broader economy. The company argued that the ballot was not a genuine step in negotiations, as there had been ongoing discussions and no immediate impasse. The union contended that the ballot was a necessary step to gauge member support for potential action and that it was conducted in good faith.

The court found that the proposed ballot was a genuine step in negotiations, as it was a reasonable response to the ongoing discussions and the lack of resolution. The court also acknowledged the economic harm that the ballot might cause but held that it was not sufficient to override the union's right to organise. The court concluded that the ballot was necessary to allow the union members to express their views on potential industrial action. The final decision allowed the union to proceed with the ballot, subject to certain conditions to mitigate the potential economic harm.

The court ordered that the ballot proceed, but with specific conditions to minimise the economic impact on the company. These conditions included limiting the duration of the ballot and the types of industrial action that could be voted on. The court also directed the union to provide regular updates to the company and the commission on the progress of the ballot and any resulting industrial action. This decision recognised the importance of protecting the rights of both the union and the company while seeking to balance the potential economic harm caused by industrial action.

Construction, Forestry, Mining and Energy Union v Carter Holt Harvey Wood Products Australia Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established